Our Constitution does not tolerate racial discrimination in the courtroom. And, yet, it is widely acknowledged that racial discrimination will inevitably, from time to time, seep into some proceedings. How we deal with those manifestations of discrimination — that is, how we detect and correct them — has bedeviled constitutional lawyers for decades.

Jury selection during a trial is one area that has been particularly fraught with racial undertones and was the subject of a recent Washington Supreme Court case. But before turning to the case, let's discuss some background.

Race and Jury Selection

As attorneys, we are intimately familiar with the jury selection process. The point of the process, of course, is to whittle the venire down to, usually, a 12-person jury. After both sides have asked the potential jurors questions, they each make "for cause" strikes based on a particular venire person's answer or demeanor that indicates a lack of impartiality.

After the parties have exercised all their "for cause" strikes, they each exercise another set of strikes, called the "peremptory strike." Peremptories are strikes that neither side has to explain. They just get to exercise them. Often it's a gut reaction that an experienced attorney gets from a particular venire person that can't easily be put into words. Peremptories could be described as the "I just didn't like that person" strike. Each side gets a finite number of peremptory strikes.

While both sides are given wide latitude to strike potential jurors, there are some important limits. Most importantly, under the Fourteenth Amendment's Equal Protection Clause, juries cannot be selected in a racially discriminatory manner. That's because doing so would infringe on the criminal defendant's right to trial by an impartial jury selected through non-discriminatory criteria. Not only that, selecting juries along racial lines violates the venire person's right not to be screened out of the process on the basis of skin color. Racial discrimination during jury selection also perpetuates stereotypes, promotes historical prejudices and invites cynicism about the integrity of the criminal justice system.

But here's the rub: What if the one of the attorneys does use one or more of his peremptory challenges to strike people on the basis of race? Because neither side has to explain their reasons — after all, that's the point of peremptories — explicit (or implicit) racial discrimination can influence an attorney's decision making. So. how do you detect when a peremptory is motivated by racial animus? No one's really sure.

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